Judge to copyright troll: your “business model” isn’t my problem

Ars Technica freelancer Eriq Gardner was recently sued over a photo that appeared in a piece he wrote for us last year. The flimsy lawsuit was quickly dismissed, but the company behind it lives on—and has sued 50+ people in Colorado for their use of the same photo. Now, the federal judge overseeing all these cases has made it clear that he sees through the company's "lawsuit as revenue generation" strategy, and that he's not interested in enabling it. Righthaven is already backing down.

The company at issue here is a Las Vegas litigation firm that finds allegedly infringing newspaper posts and images online, contracts with the newspaper in question for control of the the copyright, and files federal lawsuits against its targets. Since its inception, Righthaven has made the obviously outrageous demand that the entire domain name for the site in question be locked and then turned over to the company. This has never happened, but the threat of massive damages and of losing one's Web address seem calculated to force people into settlements of a few thousand dollars.

Recently, Righthaven has filed dozens of suits in Colorado over a Denver Post photo of a TSA airport security pat-down. One of those suits targeted Brian Hill, a 20-year-old North Carolina man who ran an "alternative news" site. Hill is a "mentally and physically disabled young man who has been unwittingly swept up in this unforgiving 'business model,'" said his lawyer in a court filing. Hill has "autism, as well as a rare and severe form of diabetes known as brittle type-1 diabetes, Attention Deficit Disorder, and hyperactivity." He is cared for at home by his mother.

Judge John Kane, who is overseeing all the Colorado Righthaven suits, last week weighed in on Hill's case. Righthaven asked for a three-week extension of time to file a response in the case, hoping to settle with Hill and to avoid drafting additional court briefs in the case. Such extension requests are generally routine, but this one was opposed by Hill's lawyer, David Kerr, who absolutely blasted Righthaven in his lengthy filing (PDF).

"Neither The Denver Post nor Righthaven attempted to mitigate any damages by simply sending a cease and desist letter," wrote Kerr, "nor any other request to discontinue the alleged infringement, prior to initiating this action. Instead, Righthaven has brought this lawsuit (and apparently 251 others) against alleged infringers, further exacerbating the Court’s overloaded docket. Righthaven’s motivation for avoiding the simple act of requesting that Mr. Hill cease and desist is simple, it is using these lawsuits as a source of revenue. Such abuse of legal process should be rejected."

The judge concurred that no extension of time would be given, and he appeared sympathetic to Kerr's argument against using federal courts in this way.

"Whether or not this case settles is not my primary concern," wrote the judge last week. "Although Plaintiff’s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability."

It's a mere procedural order, but coming from the judge who will handle Righthaven's other cases in the state, it's clear that Judge Kane has no interest in simply making things quick and cheap for Righthaven. And with IP lawyers like Kerr lined up and ready to litigate on everything from the appropriateness of the venue to questions about whether Righthaven even has the right to bring such suits, these cases could become a real drain on Righthaven resources.

The post at the center of the complaint

Righthaven court filing

This is the way the case ends: not with a bang but a whimper

In a move that proved the judge's point, Righthaven yesterday dismissed the case against Hill. Though the case was moving forward, Righthaven made clear it wasn't actually interested in litigating the suit; it wanted to settle. "Righthaven is no longer willing to engage in settlement discussions over trivial issues while the Defendant and his counsel seek to extend this action for publicity purposes," said the company. With settlement not a possibility, the company now just wants the suit to go away.

But other Righthaven targets should still tread carefully. "While the Defendant may believe the Notice of Dismissal evidences his authorization to misappropriate copyright protected material in the course of his Internet-related conduct, he can continue to do so at his own peril," wrote Righthaven attorneys. "Others observing these proceedings should so likewise heed this advice because this Notice of Dismissal in no way exonerates any other defendant in any other Righthaven action for stealing copyright protected material and republishing such material without consent."

Tough words—but defense lawyers will conclude that they need only to raise a little publicity, fight Righthaven in court, and watch as the snarling dog backs away with a whimper.

As for Kerr, he's not ready to let Righthaven off the hook so easily. "While we are pleased that Brian has been dismissed from the case, there are several outstanding issues that we believe still need to be addressed with the Court," he told Ars. "Quite frankly, we were anticipating Righthaven's response to our motion; however, we will take time to digest this development and react accordingly.

"I will not speculate as to why Righthaven chose to drop Brian's case instead of answering his motion. I believe that facts speak for themselves and each person can draw their own conclusion."

Glad to hear they aren't letting this sort of garbage stand, but my quesiton is why didn't Ars report on the story in question in the first place? Talk about a gimme, the guy's name was Cummings? I mean, come on!

Glad to hear they aren't letting this sort of garbage stand, but my quesiton is why didn't Ars report on the story in question in the first place? Talk about a gimme, the guy's name was Cummings? I mean, come on!

I disagree with how Righthaven is doing this, but blogs, magazines, newspapers, and web sites using images without consent or payment is a pretty big problem. My father has had his photographs used without his consent several times. After contacting them, sometimes they take it down without even replying, sometimes payment is offered (most often with print), and sometimes he gets no reaction whatsoever.

A centralized registry of Righthaven cases needs to be created. Defendents, lawyers, reporters and such could benefit by knowing they aren't alone, what tactics are working, and what information is available about the suits in general or specific.

I disagree with how Righthaven is doing this, but blogs, magazines, newspapers, and web sites using images without consent or payment is a pretty big problem. My father has had his photographs used without his consent several times. After contacting them, sometimes they take it down without even replying, sometimes payment is offered (most often with print), and sometimes he gets no reaction whatsoever.

It is very frustrating for someone who's images are his livelihood.

It can be a problem and there are legitimate ways of pursuing the issue.

The way these Trolls are doing it however is counter productive, they are doing more to damage legitimate claims than anything else.

I disagree with how Righthaven is doing this, but blogs, magazines, newspapers, and web sites using images without consent or payment is a pretty big problem. My father has had his photographs used without his consent several times. After contacting them, sometimes they take it down without even replying, sometimes payment is offered (most often with print), and sometimes he gets no reaction whatsoever.

It is very frustrating for someone who's images are his livelihood.

I've got no problem with a takedown notice (and potentially suing for damages if there are any). What I don't like is suits like this as a revenue source.

Nobody's saying that copyright holders don't have the right to defend their claim to their works. Righthaven's livelihood is NOT images, it's extortion and legal threats. Your father earned his copyright by actually creating something. Righthaven is just manipulating laws to get money: profit without actual production. Conflating the two is disingenuous at best.

A centralized registry of Righthaven cases needs to be created. Defendents, lawyers, reporters and such could benefit by knowing they aren't alone, what tactics are working, and what information is available about the suits in general or specific.

If I have my general photo licensing model correct- A news publication may use an image from another site in an article as long as permission has been granted by the owner and credit is given to the owner of the photo.

If Eriq G. and Brian followed that principle then there is no reason for such trolling by Righthaven. At this point, Righthaven should be shut down and banned from lawsuits!

If I have my general photo licensing model correct- A news publication may use an image from another site in an article as long as permission has been granted by the owner and credit is given to the owner of the photo.

If Eriq G. and Brian followed that principle then there is no reason for such trolling by Righthaven. At this point, Righthaven should be shut down and banned from lawsuits!

It doesn't appear that any such permission was granted. Hence the lawsuit.

chatt - you have it almost correct. It depends on the outlet. I do some freelance photography for some of the local Patch news sites. Their agreement is that they pay (barely) for full ownership of whatever images you submit that they use. For this reason, for certain events, I make sure to take many images. If there's anything stellar, I keep it for myself and they get the rest. I guess that's the beauty of being a freelancer and not a staff photographer.

At any rate, in those instances, Patch is the sole copyright owner of any images on any of their sites, therefore they would be the ones granting permission.

Rregardless, a cease and desist order should more or less be a requirement before a lawsuit. I hope judges just keep shooting Righthaven down.

In many jurisdictions, a termination in the defendant's favor - which may include the plaintiff accepting dismissal of the case, with prejudice - can support a derivative action against the plaintiff for abuse of civil process. Damages can be double or treble the original defendant's costs, sometimes including the costs of pursuing the derivative action.

Ahhh Kerr, guess he went the typical molecular biologist turned IP lawyer rout because he learned that one of those jobs actually pays money.

Sarcasm or trolling? Because he's made valid points as Hill's lawyer, and I've found no indication he was anything other than a lawyer in my search on him. If sarcasm, sorry for missing it. If trolling, at least be an educated troll.

Ahhh Kerr, guess he went the typical molecular biologist turned IP lawyer rout because he learned that one of those jobs actually pays money.

Sarcasm or trolling? Because he's made valid points as Hill's lawyer, and I've found no indication he was anything other than a lawyer in my search on him. If sarcasm, sorry for missing it. If trolling, at least be an educated troll.

I had an earlier quote from Kerr in the piece about this, but replaced it when he supplied a new one regarding the dismissal.

Glad to hear they aren't letting this sort of garbage stand, but my quesiton is why didn't Ars report on the story in question in the first place? Talk about a gimme, the guy's name was Cummings? I mean, come on!

I disagree with how Righthaven is doing this, but blogs, magazines, newspapers, and web sites using images without consent or payment is a pretty big problem. My father has had his photographs used without his consent several times. After contacting them, sometimes they take it down without even replying, sometimes payment is offered (most often with print), and sometimes he gets no reaction whatsoever.

It is very frustrating for someone who's images are his livelihood.

Lately I've had to ask for a few images to be taken down from various places, they were all taken down within a couple of days of asking, it's generally what I find always happens. If they refuse to take it down, odds are they weren't going to pay for it anyway, so it's not like there's lost revenue there. Then there's escalating options, cease and desist letters, DMCA takedowns, etc for those who don't respond (half the time they don't respond because the contact details don't work too, DMCA to their host generally always works). The point is that suing everyone and trying to raise as much cash as possible is incredibly wrong and stupid and does nothing to protect rights holders.

I see a pattern here that's troubling. We have numerous IP issues that need legal clarification but every time one looks like it will make it to court or, if in court, to be decided the plaintiff moves to dismiss. The law is already way too heavily weighted on the plaintiff's side. It would seem to me that once a suite is filed only the defendant should have the right to request dimissal. If you want to sue people then you should be required to take your beating if things don't go well.

I disagree with how Righthaven is doing this, but blogs, magazines, newspapers, and web sites using images without consent or payment is a pretty big problem. My father has had his photographs used without his consent several times. After contacting them, sometimes they take it down without even replying, sometimes payment is offered (most often with print), and sometimes he gets no reaction whatsoever.

It is very frustrating for someone who's images are his livelihood.

Yes, but Righthaven is going after ANY use of the copyrighted material (many of them appear to be fair use.) I understand it's frustrating, but if that's your livelihood, it's one of the risks. You have rights, but you have to be proactive in protecting them. Righthaven is engaging in an entirely different business; they're not interested in enforcing copyright, they're interested in scaring people into paying them money.

Companies like Righthaven wil continue this business practice because they can find judges who are sympathetic to their point of view. Sometimes I wonder if they are offering the judges a cut of the profits to enable the lawsuits to go through. They never bother with simple letters requesting infringing material be taken down, just sue, hoping that the defendants cannot afford to go to court. This is typical of the legal profession these days; legalized extortion. The lawyers know most people can't afford to defend themselves in court so it's easy money for them, especially if they can get a bought judge to allow them to sue thousands of people who may or may not have infringed on anything. Far too many lawyers simply see the legal system as a way to extort money from people; they don't give a rats tushie about justice.

Wait, so according to the sub article, the rapist goes free, but the victim gets arrested? Welcome to america.

The snopes link was posted 10 minutes before your trolling comment, way to keep up with the times.

Eeeeeasy there, matey -- a bit quick to judge, aren't we?

Did it not occur to you that Shannara may veery well have loaded the page *before* the Snopes.com link was posted, then posted her (name sounds female to me, apologies if I'm mistaken) comment after, so she wouldn't have seen it yet?

Wait, so they brought a suit, pressured him to settle, and dismissed it the second they'd actually have to litigate? It'd counter-sue if I were him...sounds like he could have a case for harassment going on there.

How is it that Righthaven can just withdraw/dismiss their frivolous cases without penalty? If this is the way it's going to be, why wouldn't they just go ahead and keep filing these suits without risk? Best case, they get free money. Worst case, they just retract and aim for another target.

"Righthaven is no longer willing to engage in settlement discussions over trivial issues while the Defendant and his counsel seek to extend this action for publicity purposes."

The above was surrounded in quotes, though I wasn't sure who was stating this. Was it Righthaven?

If so, what they are doing is extortion - trying to use force to extract money or services from another party. From what I understand is that the courts usually don't take too kindly to being used as a means of extortion. My main question is will Hill be able counter-sue for damages seeing as he had to incur attorneys' fees defending himself? Righthaven can't throw crap in the wind and expect it not to come flying back at them, they shouldn't be allowed sweep it under the rug and forget it ever happened.

A centralized registry of Righthaven cases needs to be created. Defendents, lawyers, reporters and such could benefit by knowing they aren't alone, what tactics are working, and what information is available about the suits in general or specific.

Glad to hear they aren't letting this sort of garbage stand, but my quesiton is why didn't Ars report on the story in question in the first place? Talk about a gimme, the guy's name was Cummings? I mean, come on!

The artists have chosen to exercise their copyright to control commercial use of Troll images. Postcards, beer, and other products approved by the artists are commercially available, and use is free to non-profit organizations.

I disagree with how Righthaven is doing this, but blogs, magazines, newspapers, and web sites using images without consent or payment is a pretty big problem. My father has had his photographs used without his consent several times. After contacting them, sometimes they take it down without even replying, sometimes payment is offered (most often with print), and sometimes he gets no reaction whatsoever.

It is very frustrating for someone who's images are his livelihood.

This case was about an image. But the majority of Righthaven suits are about site reproducing whole or parts of articles published by the Las Vegas Review Journal and related rags. Their strategy is to trawl the net looking for quotes from the articles, then after they find them purchase the copyright to the article and sue (even if the site published say one paragraph and linked to the source). They offer settlement terms of a few thousand bucks to try to tempt the other party to pay because hiring a lawyer would be far more expensive. It is nothing but a shakedown.

/and rolls eyes at the fools who think the "Percy Cummings" story is real.